Au20/05/lw004

Law

300level

Law of torts

Assignment

There are myriads of challenges mitigating against the effective realization of

the law relating to negligence in Nigeria. With particular emphasis on the
cultural peculiarities of the Nigerian population,discuss these challenges and
proffer possible remediesto the challenges.

Negligence
From a practical point of view, negligence is the most important and dynamic of all torts. Not every act
of carelessness or negligence is actionable under the tort of negligence. LORD WRIGHT reasoning in this
view in LOCHGELLY IRON & COAL CO V. MCMULLAN explained negligence thus; "in strict legal analysis,
negligence means more than heedless or careless conduct, whether in omission or commission. It
properly connotes the complex concept of duty, breach and damage thereby suffered by the person to
whom the duty was owing" And in Odinaka V. Moghalu, Akpata JSC summed up negligence thus;
negligence is the omission to do something which a reasonable man under similar circumstances would
do, or the doing of something which a reasonable and prudent man would not do. The tort of negligence
may therefore be defined broadly as the breach of a legal duty to take care which results in damage
undesired by the defendant, to the plaintiff.

Negligence in torts means omission to do something which a reasonable man would do or do something
which a reasonable man wouldn’t do. Negligence is the breach of a legal duty to take care which result
in damage underserved by the defendant to the plaintiff. This unlike intentional tort where the
defendant desired the consequences. Here it is undeserved damage to the plaintiff.

There are 3 elements to the tort:

1. A duty of care owed by the defendant to the plaintiff;

2. A breach of that duty by the defendant; and

3. to the plaintiff resulting from the breach.

Duty of care
The development of this tort is categorized into 3 phases. The first phase was when negligence was
merely a component of other torts. The second phase when Negligence develop into action on the cases
and this saw the beginning of negligence as an independence tort. The third phase was from the
decision of Donoghue v Stevenson. In this case, Negligence was fully recognized as an independent tort
capable of extension into new category. The first question to be determined in any action for negligence
is whether the defendant owed a duty of care to the plaintiff. In general, a duty of care will be owed
when whether in the circumstances it is foreseeable that if the defendant does not exercise due care,
the plaintiff will be harmed. Where a person does not owe a duty of care, he is free to be as negligent as
he pleases.

LORD ESHER MR explained it thus, in LE LIEVRE V. GOULD “a man is entitled to be as negligent as he

pleases towards the whole world, if he owes no duty to them.” In simple words, a duty of care means
the duty a person owes in law to take care, so that his actions or omissions do not injure another
person. The concept of duty of care, when it is owed and when liability will attach for its breach was
established in the case of Donoghue V. Stevenson. In Donoghue v Stevenson, a manufacturer of Ginger
Beer sold his product to a retailer, the retailer resold it to a lady who bought it for a friend of hers who
was the plaintiff in the case. The plaintiff had consume most of the ginger beer when she noticed the
decomposed remains of a snail in the beer. She became so sick that she had to be hospitalized and sued
the manufacturer for damages in respect of her injury. The manufacturer claimed that there was no
contractual relationship between it and the consumer and for that reason the plaintiff is not entitled to
an action.

LORD ATKIN made a definition of the duty of care, when it existed and to whom it could be owed. The
foreseeability test was laid down in the rule and it is known as “the neighbourhood principle”. He said in
his famous dictum that; the rule that you are to love your neighbour becomes in law, you must not
injure your neighbour; and the lawyer’s question, ‘who is my neighbour’? receives a restricted reply. You
must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely
to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so
closely and directly affected by my acts that I ought to have them in contemplation as being so affected
when I am directing my mind to the acts or omissions which are called in question In the case of Heaven
V. Pender, BRETT MR explained when a duty of care existed as follows; whenever one person I by
circumstance placed in such a situation with regard to another, that everyone of ordinary sense who did
not think, would at once recognize that if he did not use ordinary care and skill in his own conduct with
regard to those circumstances he would cause danger or injury to the person or property of the other, a
duty rises to use ordinary care and skill to avoid such danger. In the Heaven V. Pender case, the
defendant dock owner made a stage outside a ship on the dock under a contract with the ship-owner to
paint outside of the ship, using the stage. The plaintiff, painter who went on stage to paint the ship.
However, one of the ropes by which the stage was slung, being unfit for use when it was supplied by the
defendant broke, and the plaintiff fell down to the dock and was injured. The English Court of Appeal
held that the defendant was liable in the tort of negligence. The defendant dock owner, was under an
obligation to the plaintiff to take reasonable care that at the time he supplied the stage and the ropes,
they were fit to be used and for negligence of this duty the defendant was liable to the plaintiff for the
injury sustained. The court may deny that a duty of care is owed, on the ground of policy. In Ashton V.
Turner, it was held that a man who had been seriously injured by the careless driving of his friend whilst
they were fleeing from the scene of a burglary which they had committed, was owed no duty of care by
the friend and could not therefore recover in negligence. The duty of care was denied based on the
assertion of Ecobank J. that: The law… in certain circumstances may not recognise the existence of a
duty of care by one participant in a crime to another participant in the same crime, in relation to act
done in connection with the commission of that crime. In order to establish that he has a good cause of
action in negligence, it is not sufficient for the plaintiff to show the existence of circumstances which
gives rise to a national duty of care to him, and he can establish this only by showing that the harm
suffered by him was the reasonable foreseeable consequence of the defendant’s conduct. In other
words, negligence in the air or towards another person is not enough; the plaintiff cannot build a wrong
to someone else. Thus, for example where a meter cyclist carelessly collides with a car, he wll be liable
to the owner for any damage caused, since he owes a duty of care to all road users which are within the
foreseeable range of impact, and whom he could reasonably foresee would be harmed by his
carelessness but will not be liable for the shock and consequent miscarriage suffered by a pregnant
woman standing 15 yards away who does not see the accident but merely hears the crash and sees
blood on the road afterwards, since a duty of care, “only arises towards these individuals to whom it
may reasonably be anticipated that they will be affected by the act which constitutes the alleged
branch”.

The importance of the decision in Donoghue v. Stevenson are as follows;It establish negligence as a
separate tort. It establish that the existence of contract, a privity of contract is irrelevant for a successful
claim in negligence. It established that a claim for negligence will succeed if the plaintiff proves the
elements of negligence which are; duty care, breach of duty of care and damage. It established that
there is a duty of care if the neighbourhood principle applies. The neighbourhood principle which is
based on the biblical story of the Good Samaritan means that there is a duty of care on us, whenever
lack of care in our conduct will cause injury to any person anywhere in the world. The neighbourhood
principle is also known as the doctrine of proximity or nearness. Accordingly, any person who will be
injured by our conduct is near, or proximate to us and he is our neighbour.

The manufacturer of goods or products owes a duty of care to his consumers and he may be liable for
breach of duty in the tort of negligence. In Ibekandu v. Ike, the plaintiff respondent was walking by the
side of the highway, when Toyota Hiace bus driven by the defendant appellant ran into him. He
sustained injuries on his leg which was amputated. He sued for damages for personal injuries. On
appeal, the Supreme Court held that the defendant appellant was negligent and was liable to the
plaintiff in damages. In Black v. Fife Loal Co. Ltd. the husband of the plaintiff widow was killed by an
outbreak of poisonous gas in the coaline of the defendant company who were his employers. In an
action for damages, the court held that the defendant company was liable for the negligence of its
servants and their failure to comply with the rules prescribed for safety under the English Mines Act. In
Spartan Steel Alloys Ltd v. Martin and Co. Ltd, the defendant negligently damaged a cable belonging to
the electric power authority, whereby electricity supply to the plaintiff’s nearby steel factory was cut off
during production and consequently the plaintiff suffered loss of profit. The plaintiff sued the
defendants for negligence and for damages. The court held that the defendant was not liable for loss of
profit due to the stoppage of still production.

Standard of care

Generally, the standard of care that is required of a person is that which is expected of a reasonable
man in his shoes. It is the standard of care that would be exercised by a reasonable man who is
confronted by the same circumstances under consideration. It is the standard of care an ordinary
prudent man in his shoes would show. This test of determining what a reasonable man who was put in
his position would have done is an objective test. When compared, if a reasonable man would have
done what the defendant exhibited sub-standard care than a reasonably man would have done, then he
is liable for negligence. In the words of Baron Alderson in Blyth v Birmingham Water Works; Negligence
is the omission to do something which a reasonable man guided upon these considerations which
ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and
reasonable man would not do.

Who is the reasonable man?

In simple words, a reasonable man is an adult of normal intelligence, with average knowledge, and
common sense in every day matters. The reasonable man has been defined in England as the “man in
the Clapham Omnibus” and so forth. In Nigeria, the reasonable man was defined severally by ESO JSC in
the case of Adigun v. AG Oyo State as: The pleasant housewife shopping for a meal in sand grouse
market. The ordinary worker in Kano City. The plain woman in Okrika dress....It is what this reasonable
“man” sitting as an impartial observer, thinks… that would matter.

Breach of duty

Having decided that a duty of care was owed to the plaintiff in the particular circumstances, the court’s
next task is to determine whether the dependant was in breach of such duty. This is the question which,
in practice, occupies most of the court’s time. In deciding the question, the court considers whether or
not a reasonable man placed in the defendant’s position, would have acted as the defendant did. In
deciding what a reasonable man would have done in the circumstances and in assessing the standard of
care expected of the defendant, the court may take into account what may be called the risk factor. This
has 5 elements.

1. The likelihood of harm the conduct poses.

2. The seriousness of injury that may arise.

3. The relevance of utility of the defendant’s activity.

4. The cost and practicability of safety measure; and

5. Sometimes the amount of knowledge presently available to humanity on the issue in

question.
1. The likelihood of harm the conduct poses

The greater the likelihood that the defendant’s conduct will accuse harm, the greater the amount of
caution required of him. In Lord Wright’s words: “The degree of care which the duty involves must be
proportioned to the degree of risk involved if the duty of care should not be fulfilled.” This may be
illustrated by comparing 2 cases. In Bolon v. Stone, the plaintiff was struck and injured by a cricket ball
as he was walking along a public road adjacent to a cricket ground. The plaintiff contended that the
defendant, who was in charge of the ground, had been negligent in failing to take precautions to ensure
that cricket balls did not escape from the ground and injure passers-by but the court held that, taking
into account such factors as the distance of the pitch from the road, the presence of a 7 foot high fence,
and the frequency with which balls had escaped previously, the likelihood of the harm to passers by was
so slight that the defendant had not been negligent in allowing cricket to be played without having
taken further precautions such as raising the weight of the fence. In Hilder v. Associated Portland
Cement Manufacturers, on the other hand, where the plaintiff, whilst riding his motorcycle along the
road, crashed and sustained injuries after being struck by a football kicked from the defendant’s
adjacent land where children were in the habit of playing, the defendant was held negligent in having
failed to take precautions to prevent footballs from being tricked onto the road, since in the
circumstances, the likelihood of injury to passers-by was considerable.

2. The seriousness of the injury that may arise

The gravity of the consequences if an accident were to occur must also be taken into account. The
classic example is Paris v. Stepney Borough Council. There the defendants employed the plaintiff as a
mechanic in their maintenance department. Although they knew that he had only one good eye, they
did not provide him with goggles for his work, while he was attempting to remove a part from
underneath a vehicle, a piece of metal flew into his good eye and he was blinded. It was held that the
defendants had been negligent is not providing this particular workman with goggles, since they must
have been aware of the gravity of the consequences if he were to suffer an injury to his one good eye,
though it was pointed out that the likelihood of injury would not have been sufficient to require the
provision of goggles in the case of a two-eyed workman.

3. The relevance of utility of the defendant's activity

The seriousness of the risk created by the defendant’s activity and where they defendant’s conduct has
great social value, he may be justified in exposing others to risks which would not otherwise be
justifiable. For instance, “if all the trains in his country were restricted to a speed of 5 miles in an hour,
there would be fewer accidents, but our national life would be intolerably slowed down. The purpose to
be served, if sufficiently important, justifies the assumption of abnormal risk. Thus, the driver of an
ambulance or fire engine answering an emergency is entitled to proceed at a speed and take some
traffic risks which would be unjustifiable. For instance, it was held in Beim v. Goyer that an ordinary
motorist, a policeman, in carrying out his duty to apprehend criminals may be justified in resorting to
use of firearms, thereby exposing innocent bystanders to some risk. In all cases, one must balance the
risk against the end to be achieved, and “the commercial end to make profit is very different from the
human and to save life or limbs.” - WATT v. HERTFORDSHIRE.

4. The cost and pragmatism of the measure to avoid the harm

Another relevant question is how costly and practicable it would have been for the defendant to have
taken precautions to eliminate or minimize the risk, for in every case of foreseeable risk, it is a matter of
balancing the risk against the measures necessary to eliminate it and a reasonable man would only
neglect a risk of small magnitude if he had some valid reason for doing so, e.g. that it would involve
considerable expense to eliminate the risk. Thus, where a factory floor had become slippery after, and
the occupiers - LATHER v. A.E. LTD did everything possible to make the floor safe but nevertheless a
workman slipped on it and sustained injuries, the court held that the occupiers had not been negligent.
The only other possible step they could have taken would have been to close the factory, and the risk of
harm created by the slippery floor was not in the opinion of the court, so great as to require such a
costly and drastic step.

5. The amount of knowledge currently available regarding the activity

Where the matter or activity under consideration is on the fringes of science, and the amount of
knowledge currently available to man on the matter does not avail an answer to the risk posed, then if
society for reasons of utility and so form, permits such activity to continue, a defendant would have
discharged his duty of care if the amount of care he exercised, was in consonance with the level of
knowledge available to humanity on the matter. In determining whether a defendant’s action is up to
the standard of care expected of a person in his shoes, the court usually considers the;

Intelligence; Knowledge; and The skill of the defendant in question.

1. Intelligence

In determining whether the defendant in his actions came up to the standard of a reasonable man, the
court will measure those actions against the conduct expected of a person of normal intelligence and
the defendant will not be excused for having acted “to the best of his own judgment” if his best is below
that to be expected of a man of ordinary intelligence. Thus, it is no defence that the particular defendant
had unusually show reactions or lower than average intelligence or possessing unusually quick reactions
will not be adjudged by his own high standards, and will not be liable for having failed to use those
exceptional qualities.

2. Knowledge

A man is expected to have that degree of common sense or knowledge of everyday things which a
normal adult would possess. Also, a reasonable person is expected to have notice of what a reasonable
person in his circumstance should have noticed. In Glasgow Corp v. Tayloy, LORD SUMNER stated he
position of the law thus: A measure of care appropriate to the inability or disability of those who are
immature, or feeble in mind or body is due from others, who know or ought to anticipate the presence
of such persons, within the scope and hazard of their own operations. In Yachuk v. Oliver Blans C. Ltd, a
boy of a persuaded a garage attendant to let him have a tin of petrol, by a false, tale that his mother’s
car had run out of petrol some distance from the garage. The boy poured it over some wood and set it
ablaze. The fire caused an explosion severely injuring the boy. The Privy Council held that it was
negligence on the part of the garage attendant to entrust a child with such a dangerous thing as petrol.
A reduction of damages would not be made on the ground of the contributory negligence of the child.

3. Skill

A person who holds himself out as having a certain skill either in relation to the public generally e.g. a
car driver or in relation to a person for whom he is performing a service e.g. a doctor will be expected to
show the average amount of competence normally possessed by persons doing that kind of work, and
he will be liable in negligence if he falls short of such standard. Thus, for example, a surgeon performing
an operation is expected to display the amount of care and skill usually expected of a normal,
competent number of his profession, whereas a jeweller who pierces ears for earrings is only expected
to display the amount of skill of a normal jeweller and not that of a surgeon. Somewhat surprisingly,
however, it has been held that a learner driver must comply with the same objective and impersonal
standard as any other driver. This decision may perhaps be explained on the ground that a car is a
potentially lethal weapon, and public policy requires that the strictest possible standards of care be
maintained, even by learners.

Exceptions to the standard of care of the rasonable man

Children; and Mentally ill and disabled persons.

The amount of care expected of children

Children are usually treated as a class of their own. Based on authorities in this area, the degree or
standard of care required of a child is the standard of care expected of a child of his age. It is the degree
of care expected of a reasonable child in the shoes of the child in question. The test is objective and not
subjective. Furthermore, the general rule is that the actions and omissions of negligence of children is
not usually treated as contributory negligence. However, it appears that each case may be decided
based on its facts.

The amount of care expected of disabled persons

General rule is that the standard of care to be expected of a person who is subject to incapacity or
infirmity is the degree of care to be expected from an average person who is subject to the same
infirmity. The test is objective. In Roberts v. Ramsbottom, the defendant had a minor stroke before
driving off in his car. He was not aware that what he had suffered was a stroke, although he agreed that
he felt somehow dizzy. In the course of his journey, he collided with and injured the plaintiff. The
defendant was held to be liable as he knew of his disabling health condition before he went on the road.
Proof of negligence and res ipsa loquitor

The burden of proving negligence (i.e. that the defendant was in breach of the duty of care he owned to
the plaintiff) always lies on the plaintiff whereas, in actions of trespass it is for the defendant to
exonerate himself by showing that the injury to the plaintiff was an inevitable accident and not due to
any wilfulness or carelessness on his part, in the tort of negligence it is for the person who suffers the
injury to prove affirmatively that it was caused by the defendant’s carelessness.

Res ipsa loquitor is a Latin phrase which means “the facts speak for themselves”. The term is used to
refer or describe anything that is plain, clear or self explanatory and needs no further explanation, proof
or clarification. The principle is a rule of evidence and does not apply when the facts of what happened
are sufficiently known, but the rule applies only when there is no explanation. The principle aims at
assisting the plaintiff in establishing his claim for negligence against the defendant. The most popular
statement of when Res ipsa loquitor is applicable was made in Scott v. London & St. katherine’s Dock Co.
In this case, the plaintiff, a custom officer was passing in front of the defendant’s company’s warehouse
when he was injured by bags of sugar which fell on him from the upper floor. The plaintiff relied on the
principle of Res ipsa loquitor. ERLE CJ explained when the principle will apply to a case thus, where the
thing is shown to be under the management of the defendant, or his servants, and the accident is such
that, in the ordinary course of things, does not happen if those who have the management use proper
care, it affords reasonable evidence, if the absence of explanation by the defendant, hat the accident
arose from want of care. Where Res ipsa loquitor is successfully invoked, the effect if, To afford prima
facie evidence of negligence, so that the defendant cannot succeed in a submission of “no case to
answer” and To shift the onus on the defendant to show either that the accident was due to a specific
cause which did not involve negligence on his part, or that he had used reasonably care in the matter.
Thus, Adefarasin Ag. C.J. pointed out: The maxim is no more than a rule of evidence affecting onus. It is
based on common sense, and its purpose is to enable justice to be done when the facts bearing on
causation and on the care exercised by the defendant are at the outset unknown to the plaintiff and are
ought to be within the knowledge of the defendant.

Requirements for the application of res ipsa loquitor

There must be an absence of explanation of the occurrence by the plaintiff. The thing that caused the
harm must have been under the management or control of the defendant or his servant; and The
accident or harm must be one which in the ordinary course of things, does not happen without
negligence on the part of the defendant.

1. The absence of explanation by the plaintiff

the court is able to find out from the evidence adduced how and why the occurrence or injury took
place, then there is no need for the application of res ipsa loquitor and the presumption of negligence.
In Barkway v. South Wales Transport Co, tyre of as omnibus burst and the burst and the bus mounted
the pavement and fell down a nearby embankments. The court held that the doctrine of Res ipsa
loquitor was not applicable, as evidence of the circumstances of the accident has been given to the
court and the court was satisfied that the system of tyre inspection in the garage of the defendant had
been negligent. The defendant transport company was liable for negligence based on the evidence given
before the court. Where a plaintiff is only liable to present a partial evidence of how and why the
accident happened, he is not prevented from recycling on Res ipsa loquitor.

2. The thing was under the management or control of the defendant or his servant

Where the thing that caused the injury was not under the management or control of the defendant or
his servant, then the doctrine is inapplicable. The question whether or not the think that caused the
harm was under the management or control of the defendant or his servant is to be decided based on
the circumstances of each case. A common example of a person having the management or control is a
driver. A driver is presumed to have control of his vehicle and the surrounding circumstances to warrant
the applicable rule in a case of negligent driving. Also, where the thing caused injury is under the control
of several servants of a defendant and the plaintiff cannot identify the particular servant that is
responsible, for instance, during a surgery operation in hospital when a patient is under anaesthesia, the
doctrine will still apply to make the defendant vicariously liable for the act of the unidentified servant.

3. The thing does not ordinarily happen without negligence by the defendant

The harm must be one that does not ordinarily happen if proper care is taken by the defendant. Thus,
the accident or injury must be one, which in the ordinary course of things does not happen without
negligence by the defendant. Negligence is readily presumed where human experience shows that the
type of accident or injury does not usually happen unless the defendant has been negligent. In Strabag
construction Nig. Ltd. V. Ogarekpe, the plaintiff respondent technician was an employee of the
defendant appellant company. While the plaintiff and two others were on top of a tower being installed
at a considerable height, the crane on which they were hoisted up suddenly collapsed and they fell
down suffering serious injuries. He sued for damages and pleaded res ipsa loquitor. The Court of Appeal
held that the doctrine applied and that the appellant company was liable for negligence.

NB: The majority of Nigerian cases in which the doctrine of Res ipsa loquitor has been invoked concern
read accident. A typical example is Ifeagwu v Tabansi Motors Ltd. Here, the plaintiff was sitting in his
brother’s roadside shop at a village on the Onitsha-Enugu road when a petrol tanker enroute Enugu with
3000 gallons of petrol collided with a nearby electricity pole, overturned and burst into flames. The
plaintiff was badly burnt in the inferno and her subsequently sued the defendants, as employees of the
tanker driver, for negligence, relying on Res ipsa loquito. Arsene J held hat the doctrine applied.

In Kuti v Tugbobo, the plaintiff was injured when the lorry in which he was travelling from Oloto to Ijebu-
Ode skidded on a wet road, crashed into the pillar of a bridge, and overturned. The trial judge held that
res ipsa loquitor applied, and this finding was upheld by the Supreme Court.

Damage caused by the breach

Having established that the defendant owed a duty of cane to him and that the defendant was in breach
of that duty, the plaintiff must then prove that he has suffered damage for which the defendant is liable
in law. There are 2 aspects to this requirement, namely;

1.Causation in fact
2.Remoteness of damage in law
1. Causation in fact
The first question to be answered is: “Did the defendant’s breach of duty in fact cause the damage?” It is
only when this question can be answered in the affirmative that the defendant may be liable to the
plaintiff. A useful test which is often employed is the “but- for” test: that is, if the damage would not
have happened but for the defendant’s negligent act. The claimant must prove the existence of a causal
link on the balance of probabilities, which is taken to mean a likelihood of more than 50%. If the court
finds that it was as likely as not that the injury would have occurred without the defendant’s negligence,
the action will fail even if there is an admission of carelessness. The operation of the “but-for test” is
well illustrated by Barnett v. Chelsea and Kensington Hospital Management Committee. In this case, the
plaintiff’s husband, after drinking some tea, experienced persistent vomiting for 3 hours. Together with
two other men who had also drank the tea and were similarly affected. He went late that night to the
casualty department of the defendant’s hospital where a nurse contacted the casualty officer, Dr. B. by
telephone, telling him of the man’s symptoms Dr. B, who was himself tired and unwell, sent a message
to the man through the nurse to the effect that they should go home to bed and consult their own
doctors the following morning. Some hours later, the plaintiff’s husband died of arsenical poisoning and
the coroner’s verdict was one of murder by a person or persons unknown. In a subsequent action for
negligence brought by the plaintiff against the hospital authority as employers of Dr. B. it was held that,
in failing to examine the deceased, Dr. B. was guilty of a breach of his duty of care, but this breach could
not be said to have been a cause of the death because even if the deceased had been examined and
treated with proper care, he would in all probability have died anyway. It could not therefore be said
that “but for the doctor’s negligence the deceased would have lived.” A more severe application of the
‘but-for’ test occurred in McWilliams v. Sir. Williams Arrol & Co. Ltd., there, a steel erector was killed
when he fell from a building on which he was working. Had he been wearing a safety harness, he would
not have fallen. The defendants, his employers were under a statutory duty to provide safety harnesses
for all their employers working on high building and they were in breach of that duty by failing to
provide them. Nevertheless, they were held not liable since they proved that on previous occasions,
when safety harnesses had been provided, the plaintiff had never bothered to wear one. Thus, it could
not be said that the failure to provide a harness was a cause of the death.

However, the test often runs into hitches, where for instance, the wrong of the defendant is followed
by another wrong which does not substantially alter the initial scenario, but does add to it. See Baker v.
Willoughby, here, as a result of the defendant’s negligence, the claimant suffered an injury to his leg.
Damages for this injury had been fully assessed. However, before trial was concluded, armed robbers
shot the claimant several times on the same leg resulting in the amputation of the leg. Ordinary justice
would have adequately compensated the claimant since they would be held only accountable for injury
to an already damaged leg. The original tortfeasor had to bear full responsibility. Again, where there is
more than one wrong doer each contributing fully or substantially to the case of the claimant’s injury

In Fairchild v. Glenhaven Funeral Services Ltd, the House of Lords had to qualify the ‘but for’ test to
allow recovery in a case where it was impossible on the state of scientific evidence to determine which
one or more of several employers, all admittedly in breach of duty, caused the claimant to suffer a fatal
illness. According to Markesinis and Deakin, “these cases suggest that although the ‘but for’ test is based
on notions of the limits of individual responsibility, and in particular on the precept that the defendant
should not be liable for a loss which he personally and not cause, such a principle may come into conflict
with the aim of ensuring that the volition of tortuous conduct is fully compensated for losses caused by
fault. In the same vein, Lord Nicholls notes, “even the sophisticated versions of the ‘but-for’ test cannot
be expected to set out a formula whose mechanical application will provide infallible threshold guidance
on causal connection for every tort in every circumstance. In particular, the ‘but-for’ test cannot be
over-exclusionary.

We also have a probabilistic cause, here, we see a situation where the court is faced with several
probable causes of the claimant’s injury of which the defendant’s action is one. What should be done?
Clearly one of the probable causes is responsible for the claimant’s damage but there is no certainty
which one is actually the cause. In McGlee v. National Coal Board, the plaintiff contracted dermatitis
after working in a Kiln where he was exposed as cement dust. The defendants were not faulted for this
as this was incidental to his contract of employment. However, the employers were in breach of their
common law duty of care in failing to provide washing facilities at the place of work. However, medical
evidence about the causes of dermatitis was such that it was not possible to say that had washing
facilities been provide the pursuer would have escaped the disease. But the defendant’s failure had
substantially contributed to the claimant’s injury. The House Lords held that the claimants was entitled
to succeed In Fairchild, the result of the case that all contributors were made to bear responsibility
equally rather than send the claimant away. However, the position varied in Barker v Corus, and
proportionate liability imposed in relation to the extent of the defendant’s liability imposed in relation
to the extent of the defendant’s liability. There is also the question of loss of a chance for recovery
which appears not to be receiving favourable consideration loss of enhances cases appear to be treated
as a failure to prove causation.

2. Remoteness of damage
This is known as concession in law. The question of remoteness arises only after concluding the question
in fact. The essence of concession in law is to avoid the situation where the defendant liable ad infinitum
(indefinitely); for all the consequences of the wrongful conduct. In certain cases, consequences of the
defendant’s tortuous conduct would be considered too remote if his wrongdoing to impose on him
responsibilities for those consequences. The court, therefore, imposes the cut-off point beyond which
the damage is said to be too remote. An independent event which occurred after breach of duty and
which contributed to the plaintiff’s damage may break the chain of causation, so as to make the
defendant not liable to any damage that occurs beyond this point. Where this occurs, the event is void
to be novus actus intervenes. In Monye v. Diurie, the plaintiff was knocked down as a result of careless
driving of a lorry by the defendant. He suffered injury to his leg and was rushed to the hospital almost
immediately. However, before completion of his treatment and against the doctor’s medical advice, he
discharged himself only to return after two days. The leg was infected and consequently it was
amputated. A claim for the loss of the leg brought against the defendant by the plaintiff failed because,
though, it was foreseeable that the plaintiff would as a result of the accident sustained injury. It was not
foreseeable that the defendant would against medical advice leave the hospital for two days leading to
infection that necessitated the amputation of his leg. This was held to be too remote and the defendant
was not held liable.

LEGAL FRAMEWORK OF MEDICAL NEGLIGENCE

The Medical and Dental Practitioners Act (the Act) 2004 is the principal law regulating the medical
profession in Nigeria. This Act established the Medical and Dental Council of Nigeria (MDCN), which
provides for the registration of medical and dental practitioners. The MDCN in furtherance of its
statutory function as provided by the Act codified the rules of professional conduct for medical and
dental practitioners in its Code of Medical Ethics in Nigeria, 2008. This code lays down the standard of
acceptable medical and dental practice in Nigeria. The Act also established the Medical and Dental
Practitioners Investigating Panel (the Panel) and the Medical and Dental Practitioners Disciplinary
Tribunal (the Tribunal). The Panel is charged with carrying out preliminary investigations of any
allegation of infamous conduct in professional respect made against a medical practitioner, and where
such allegations have merit, the Panel forwards the case to the Tribunal for trial.Criminal Liability in
Medical Negligence

A victim can seek redress for medical negligence under criminal law in the gravest of circumstances.
Where the extent of the negligence had been such that it resulted in permanent disability or death of
the patient, then the practitioner will be guilty of gross negligence which can amount to a crime against
the State. And where such breach of duty of care results in the death of a patient, a medical practitioner
can be liable for manslaughter. Furthermore, there are other offenses a medical practitioner can also be
liable for during his course of duty depending on the nature of his/her actions. Section 343 (1) (e) of the
criminal code provides that: "Any person who in the manner so rash or negligent as to endanger human
life or to be likely to cause harm to any other person giving medical or surgical treatment to any person
whom he has undertaken to treat is guilty of misdemeanor and is liable to imprisonment for one year

"Civil Liability Medical Negligence

The degree of negligence, which gives rise to civil action must be that of ordinary tortious negligence.
This can be proved where all elements of the three tests exist, which are: That the medical practitioner
owed a duty of care to the patient; the duty of care was breached; and as a direct consequence of the
breach, the patient suffered damages. Also, the onus of proof lies with the claimant who must call
evidence to show negligence on the part of the medical practitioner. Commencing a civil action for
negligence may give rise to vicarious liability. In circumstances where hospital staff is negligent in the
performance of their duties, the hospital may be held to be vicariously liable. This is based on the
general principle that an employer is liable for the act of its employee in the course of his employment.
This principle was recognized in the case of Ibokwe V UCH Board of Management, where Irwin J held
that hospital authority is responsible for the acts or omission of the whole of its staff, whether they were
physicians, doctors, nurses or other employees."

In Nigeria, the medical profession is one that has suffered some setbacks in dealing with issues relating
to medical negligence. These cases of medical negligence, has caused much grief to several families and
little is known of the legal consequences of the actions of the medical practitioners or respective health
care establishment. As a result, people tend not to voice out or take action in cases where gross medical
negligence has been done, due to various reasons which shall be highlighted in this article. The reality
that exists today is that the average Nigerian has only a vague knowledge of the existence or
enforceability of the Laws regulating Medical Practice, particularly curbing Medical Malpractice and
Negligence in Nigeria.

MEDICAL NEGLIGENCE

The term ‘medical negligence’ refers to failure, on the part of a medical practitioner to exercise
reasonable degree of skill and care in the treatment of a patient. The need for patients to be protected
from medical practitioners who no longer use their professionalism to save lives but as an avenue to
make more money at the expense of their patients. Globally, the fight for the protection of patients has
been canvassed. In a bid to ensure the right of the patients in Nigeria, legislation and increased reliance
on court action are ways to ensure that negligent medical practitioners are made to pay damages to
affected patients. Though some have held the view that the medical profession should be left to
regulate itself (through the regulatory aid of the Nigerian Medical Council) and that it alone should
decide what is an acceptable conduct.

The Nigeria Medical Council regulates the actions of Medical Practitioners in line with laid down rules
and regulations for medical practitioners towards a patient and where a medical practitioner goes
contrary to the rules and regulations, a medical tribunal is set up to try him for malpractices. Medical
practitioners are to avoid practices such as advertising association, addiction, abortion and adultery. In
instances where a medical practitioner is found guilty of any of these offences, he is deemed to be guilty
of infamous conduct in a professional respect. The principles and laws governing the medical profession
should ordinarily be enforceable but these rules enforced by the Medical Council, are bedevilled by
quite a number of legal problems.

Some of the problems are associated with the court’s strictness on the application of natural justice in a
situation where a tribunal or an administrative body purports to make a decision affecting the rights of
another without observing the principle of audi alterem partem and fair hearing. Moreover, the
Supreme Court has held in Garba v University of Maiduguri, that an administrative tribunal do not have
jurisdiction to conduct inquiries or take decisions in a matter involving an allegation of crime. The view
of the court in connection to the civil rights of persons even of those accused of infamous conduct has
led to different outcomes and decisions in various cases.

An action of negligence against a medical practitioner must prove three conditions in order to succeed:

(a) That the doctor owed the patient a duty to use reasonable care in treating him or her.

(b) That the doctor failed to exercise such care, that is he was in breach of that duty.

(c) That the patient suffered damage(s) as a result of the breach.

It is important to note that the medical practitioner’s duty of care arises once such one doctor
undertakes to treat a patient, whether or not there is an agreement. The medical practitioner is
expected to exercise reasonable care and skill in treating the patient; it is pertinent that the doctor is
rendering such a service ex gratia. The extent of the duty of care is so much so that a medical
practitioner in the hospital owes a duty of care to patients in the ward in which the doctor is employed
to work, a private physician who has contracted to provide medical services for the employees owes a
duty of care to such employees who are on the clinic’s list. Medical centres and hospital authorities also
owe the same duty of care to patients accepted for treatment in their facilities, whereby they must
provide proper medical services for them. A medical practitioner who holds out to a patient as
possessing special skills and knowledge in a particular field of medicine or surgery, then such medical
practitioner must exercise the same degree of care and skill as a doctor who generally practices in that
field.

In deciding on medical negligence, the court balances all the relevant circumstances in order to decide
whether the medial practitioner’s conduct has fallen below what constitutes a reasonable standard of
care. He is particularly judged according to what a person in a particular circumstances “ought to have
done and person’s foresight is similarly assessed according to circumstances and risks which ought to
have been foreseen. Conduct that constitutes breach of duty could take various forms which includes
but not limited to failure to admit into hospital a patient whose condition requires hospitalisation,
failure to sterilize surgical instruments, leaving a surgical instrument or swab in the body of a patient
after operation, failure to cross match blood before transfusion, prescribing drugs using a patient for
experimental purposes without the consent of the patient.

Additionally, an action for medical negligence cannot succeed unless the patient has suffered some
harm as a result of the medical practitioner’s negligence. It is not sufficient that a doctor was negligent
in giving medical treatment to the patient and the patient suffered some harm. It must be shown that on
balance of probabilities the harm was so caused. Usually, expert medical testimony is called to prove
this causation. The courts adopt a broad approach in resolving legal issues arising thereof. If the court
determines that the damage would have occurred despite the doctor’s negligence, then the negligence
did not cause it. In a plethora of cases in proving medical negligence, one conclusion is inescapable,
namely that, the court cannot attain its purpose of trial without conscientious assistance of medical
experts.
LAWS GOVERNING MEDICAL ETHICS IN NIGERIA

The Medical Profession in Nigeria is regulated by the Medical and Dental Council of Nigeria (MDCN). The
MDCN in furtherance of its statutory functions as provided for in Section 1 (2)(c) of the Medical and
Dental Practitioners Act (MDPA), Cap M8 , LFN 2004, codified the rules of professional conduct for
Medical and Dental Practitioners in its Code of Medical of Ethics in Nigeria (2008). There are two organs
responsible for the discipline of Medical and Dental practitioners.4

Section 15(3) of the Medical and Dental Practitioners Act establishes the Medical and Dental
Practitioners Investigation Panel (“The Investigation Panel”) which is saddled with the responsibility of
conducting preliminary investigation into any case where it is alleged that a registered person has
misbehaved in his capacity as a medical practitioner or dental surgeon amongst other functions. The
Investigation panel after investigation will determine whether or not a prima facie case has been
established against the practitioner. If a prima facie case is established against the practitioner, the
Investigation Panel will frame a charge against him before the Medical and Dental Practitioners
Disciplinary Tribunal (“the Disciplinary Tribunal”)

The Disciplinary Tribunal established by section 15(1) of the Medical and Dental Practitioners Act is
charged with the duty of considering and determining any case referred to it by the investigation panel.
Where the Disciplinary Panel finds a practitioner guilty of in-famous conduct in any professional respect,
in line with the provisions of section 16(2) of the Medical and Dental Practitioners Act, the Disciplinary
Tribunal may order the Registrar to strike the person’s name off the register; or suspend the person
from practice by ordering him not to engage as medical practitioner or dental surgeon for a period not
exceeding six months; or admonish the practitioner. The drawback however, is that the provision for
suspension was pegged at six months, it would have been better if it was made flexible because some
offences are not grave enough to attract striking out the practitioner’s name from the register but
deserve more than six months suspension.

MEDICAL NEGLIGENCE WITH CRIMINAL CONSEQUENCE

It is trite that criminal law does not generally punish negligence. This is due to the fact that Section 24 of
the Nigerian Criminal Code Act 1990 states that “no person can be criminally responsible for his unwilled
acts or omission or even the accidental consequence of his willed acts”. But this section is subject to the
express provisions of the Code relating to negligent acts or omission. In a case where medical treatment
results in the patient’s death in consequence of the gross negligence of the Medical Doctor, a charge
may be sustained against him for manslaughter as was the case in R .v. Akerele (1941) where a Medical
Practitioner who applied overdose of sobita on a number of children which led to their death was held
(by WACA, although later reversed by the Privy Council on technical ground) to have been criminally
negligent and accordingly convicted for manslaughter. This is because under Section 303 of the Nigerian
Criminal Code Act 1990, every person, except in case of necessity, undertakes to administer surgical or
medical treatment has a duty to have reasonable skill and to use reasonable care in administering the
treatment and if any negative consequence results to the life or health of the patient as a result of his
breach of this duty, he is held to have caused such consequence. However, because negligently causing
death is the crime of manslaughter, such a doctor will be found guilty of manslaughter. The criminal
liability of a medical practitioner who has exhibited gross negligence in the management of a patient
now enjoys universal acceptance. The case of Dr. Conrad Murray, Michael Jackson’s personal physician,
who was found guilty of involuntary manslaughter i.e. criminal negligence, is a case in point. It was
established during trial that Dr. Murray administered a lethal dose of anesthetic profonol on Michael
Jackson in his house and left him without medical supervision. The Court described Dr. Murray’s
conduct as reckless and he was sentenced to two years imprisonment. In Nigeria, one of the grounds for
the discipline of a medical or dental practitioner is conviction by a court which has the power to impose
imprisonment for an offence (whether or not an offence punishable with imprisonment) which in the
opinion of the Disciplinary Tribunal is incompatible with the status of a medical practitioner or a dental
surgeon as the case may. Section. 16(1) Medical and Dental Practitioners Act, Cap.M8 LFN 2004.

Other offences which could make a Medical Practitioner liable during his course of duty once the
elements of the offences are proved are abortion, adultery (in the north), rape, murder and
manslaughter. One question that would agitate the mind of a legal practitioner who represents a
medical or dental practitioner facing a charge for medical negligence before the Disciplinary Tribunal is
whether prosecution of a practitioner before the Disciplinary Tribunal can be pursued simultaneously
with civil claim for damages in the courts.

Quite often, parties to a complaint of professional misconduct also proceed to court in respect of the
same subject matter. Sometime, the complainant proceeds to court to claim damages for the
negligence, while also laying a complaint before the Medical and Dental Practitioners Investigating
Panel. Sometime also the practitioner complained against proceeds to court seeking a restraining order
against either the complainant or the Tribunal. The question is whether the civil claim in the courts can
be a bar to an investigation by the Investigating Panel, or trial by the Disciplinary Tribunal. Ordinarily, the
complainant would be at an advantage to await the result of professional disciplinary action before
proceeding to the civil court for claims for damages. But as it happens quite often, due largely to a
period of interregnum between the dissolution of one Council and the composition of another,
complaints before the disciplinary organs of the professional bodies last much longer than three years
before they are resolved. Of course after a period of three years, a claim based on negligence would in
most jurisdictions be caught by limitation. Some have argued that once a Suit has been instituted in the
High Court on the same subject matter, the matter becomes sub judice, such that no investigation by the
Investigating Panel or trial by the Disciplinary Tribunal ought to proceed. If such were the position, such
cases would linger for a very long time as to lose their deterrent value, or even discourage the
complainant from further pursuing the matter.

It therefore advisable, that instances of medical negligence against the medical practitioner should come
by way of criminal prosecution, because conviction by the court is by itself a ground for the Disciplinary
Tribunal exercising disciplinary action against the medical practitioner.

DEFENCES OF MEDICAL PRACTITIONERS TO THE CLAIM OF MEDICAL NEGLIGENCE

In as much as the cases of medical negligence seems clear cut; leaving medical practitioners with little or
no excuse for the resultant effect of their act and omissions on a patient, sadly, though, these medical
practitioners have to their defence, the consent obtained from the patient. They rely on consent where
there are allegations against them for medical negligence, alleging that the patient consented to the
treatment but forgetting the fact that the patient only consented to proper management of sickness.
Invariably, the law will either imply consent or give the medical practitioner the benefit of the defence
of private necessity under consent. The use of consent as a defence is rather worrisome as we all know
that in Nigeria, necessary details are often not communicated to patients which is due to the fact that
because of poor educational background, most patients. Consent must not be obtained under duress,
threats, violence or by inducement. The majority of hospital’s surgical procedures are expressly
authorized by the patients having signed a consent form, but such consent will not protect a surgeon
from liability for negligence in the course of the procedure, neither will it permit the surgeon to
undertake a procedure going beyond the consent given or going on a voyage of exploration unless the
treatment creates an emergency situation which consent to the additional procedures cannot be
obtained immediately. It is important that for the validity of the agreement, that the patient’s consent
should be genuine and real; not given under circumstances which would make it not to be a real
consent.

Another defence that medical practitioners usually rely on is the defence of acceptable practice. The
choice of accepted medical practice as to the criterion governing the disclosure of risks which supports
the view that a doctor owes no duty to warn of normal risks, such as infection, and those created by
anaesthesia which are inherent in any surgical procedure and the view that a doctor’s clinical
assessment of the patient’s condition may justify the withholding of information in the patient’s
interest. The law seeks to balance the conflicting interests in this area by a departure from accepted
practice as not itself constituting negligence, but requiring the practitioner who chooses to experiment
to justify his actions by recourse to the reasoning which underlined them. In medical treatment, the use
of experimental procedures is likely to require a full disclosure to the patient of possible risks as well as
the provision of an increased level of post-operative care. It is clear that the courts approach
experimental treatment strictly and seek to ensure that a professional person who chooses to undertake
such work has considered all the information available on the techniques in question, and has access to
the results of empirical research in any question of doubt that remains, and has taken reasonable care
to think the problem through so as to attempt to identify any particular difficulties posed by his
suggested solution.

SETBACKS TO THE REDRESS OF MEDICAL NEGLIGENCE

The major obstacles in seeking redress in a medical negligence case is that majority of the victims of
medical negligence have failed to undertake legal proceedings against medical practitioner due to lack
of finance. Judicial procedures usually require substantial sums of money to prosecute as the victim will
certainly require the services of not only of a legal practitioner but also of a medical practitioner as
expert witness. The reality of the situation is that victims of medical negligence often the poor and these
cannot shoulder the financial responsibility involved in the pursuit of their case. The indigent litigant will
because of the high cost, be deprived of his rights to litigate notwithstanding the grave harm that may
have been done to him. While others have given their reasons for not going to court as due to the fact
that such cases do take very long time before it is determined. The question as to who can sue for
medical negligence, it is anyone to whom the duty of care is owed. Statutes may also confer such a right
to some people who were not entitled under common law; for example where death occurs as a result
of the negligence of another. Every person of full age of 18 years can sue, an infant or minor (not yet 18
years) having a cause of action can sue through his “next friend”, parent or guardian.

DAMAGES AWARDED FOR MEDICAL NEGLIGENCE

Damages awarded in medical negligence ranges from compensatory, special, aggravated or exemplary.
Compensatory damages are paid to compensate the victim for loss, injury or harm suffered as a result
the breach of duty.

Special damages are compensatory damages categorized under special damages, which are awarded to
victims to cover economic losses such as earnings, medical expenses and general damages. It further
includes non-economic damages such as pain, suffering and emotional distress. Aggravated damages are
awarded to compensate for non-pecuniary losses, aggravated damage; taking into account intangible
injuries. Such intangible elements include pain, grief, damaged self- confidence or self-esteem, etc. It is
important to note that, it is not the damages that are aggravated but the injury suffered by the victim.
The damage award is therefore, for aggravation of the injury by the medical practitioner’s high handed
conduct. Exemplary damages are damages awarded when the Medical practitioner’s act is deemed
wilful, malicious, violent, or grossly reckless. These damages are awarded to act as punishment and to
set a public example.

LIST OF AUTHORITIES

Garba v University of Maiduguri 19 NSCC 306

Section 1 (2) (c) of the Medical and Dental Practitioners Act (MDPA), Cap M8, LFN 2004

Section 15(3) of the Medical and Dental Practitioners Act

Section 15(1) of the Medical and Dental Practitioners Act

Section 16(2) of the Medical and Dental Practitioners Act

Section 24 of the Nigerian Criminal Code Act, 1990

R .v. Akerele (1942)8 WACA 5

Section 303 of the Nigerian Criminal Code Act, 1990